Citation Nr: 1308807
Decision Date: 03/15/13 Archive Date: 03/25/13
DOCKET NO. 10-39 164 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
A.G. Alderman, Counsel
INTRODUCTION
The Veteran served on active duty from January 1967 to December 1970.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
FINDINGS OF FACT
1. The Veteran served as jet aircraft mechanic in service and was exposed to noise during that time.
2. The Veteran has a current hearing loss "disability" as defined by VA regulation under section 3.385.
3. The current hearing loss disability is at least as likely the result of noise exposure in service as it is the result of some other cause or factor.
CONCLUSION OF LAW
Resolving reasonable doubt in the favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.385 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).
Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).
Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)).
Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id.
If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); 38 C.F.R. § 3.303(b).
For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54.
In this case, service treatment records (STRs) include the audiological evaluation completed during the Veteran's entrance physical in August 1966 which shows puretone thresholds, in decibels, as follows:
500
1000
2000
3000
4000
Right
5 (20)
5 (15)
-5 (5)
5 (15)
-5 (0)
Left
5 (20)
-5 (5)
-5 (5)
-5 (10)
-5 (0)
(NOTE: Before November 1, 1967, audiometric results were reported by the military in standards set forth by the American Standards Association (ASA). (VA used ASA standards on or before June 30, 1966.) Those are the figures on the left of each column and are not in parentheses. Since the mid-1960s, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) and have used by the military, for the most part, unless otherwise noted. (VA has used ISO-ANSI standards, unless otherwise noted, since July 1, 1966.) In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)
The audiological evaluation completed during the Veteran's separation physical in December 1970, shows puretone thresholds, in decibels, as follows:
500
1000
2000
3000
4000
Right
15
15
15
25
20
Left
15
15
20
25
25
Although these results did not reflect that the Veteran had a hearing loss "disability" as defined under section 3.385, the audiometric results at separation do show some degree of hearing impairment at the higher frequencies-specifically, at 3000 Hz. on the right and at 3000 and 4000 Hz. on the left. See Hensley, 5 Vet. App. at 157 (noting that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The results also indicate a threshold shift at the higher frequencies from within the range of "normal" at entrance to some degree of hearing loss, albeit mild, at separation, according to the medical treatise which was cited in Hensley to define the point at which hearing loss begins. Id.
However, the Board notes that a chronic hearing loss was not "shown as such in service," i.e., "meaning clearly diagnosed beyond legitimate question" in this case. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013)). Rather, there was no diagnosis of hearing loss in service at all, nor was there one within the one-year presumptive period after service so as to permit a finding of service connection. 38 C.F.R. § 3.303(b). Moreover, two VA audiologists indicated in their reports that hearing was within normal limits on the separation examination report, although the April 2009 VA audiologist noted a mild hearing loss at 6000 Hz. bilaterally at separation. See April 2009 VA Audio Examination Report, pp. 2, 4; July 2010 Addendum to February 2010 VA Audio Examination Report, p. 4-5. Given this evidence, the Board concludes that, in order for the Veteran to prevail in his claim for service connection for bilateral high frequency sensorineural hearing loss in this case, (1) there must be "continuity of symptomatology" to show that a high frequency hearing loss shown on audiometric testing at separation, which meets at least some medical treatises' definitions of hearing loss, was indeed a "chronic" condition (38 C.F.R. § 3.303(b)), or (2) he must provide a link or nexus between current hearing loss and an injury or disease in service. 38 C.F.R. § 3.303(a), (d).
With regard to current hearing loss, the first post-service indication of hearing loss is noted on a January 1994 Agent Orange Registry examination where it was noted that the Veteran had "previously documented high frequency hearing loss, left ear." However, there are no audiometric results with this report.
A hearing loss "disability" for VA service connection purposes is reflected in an April 2009 VA examination report, dated approximately 39 years after separation from service. This audiological evaluation showed puretone thresholds, in decibels, as follows:
500
1000
2000
3000
4000
Right
20
25
45
55
65
Left
30
25
35
60
70
Speech recognition scores were 92 percent bilaterally. The diagnosis was bilateral sensorineural hearing loss. Since the testing shows at least one hearing threshold over 40 decibels for each ear, the Veteran has a current bilateral hearing loss disability for the purposes of service connection. 38 C.F.R. § 3.385. The remaining questions are (1) whether there is continuity of symptomatology to show that the hearing loss shown at separation which met the Hensley definition of hearing loss was indeed a "chronic" disease or (2) whether there is a link or nexus between the current hearing loss disability and a disease or injury in service.
Taking the second question first, the Veteran has asserted in statements dated throughout this appeal that his hearing problems developed as a result of noise exposure to jet engines while serving as a jet engine mechanic during service. His job was on the flight line rebuilding engines and installing them, and these duties involved hours directly under the engines while they were being tested. He contends that normal hearing protection was not enough, and that he has suffered hearing problems since service. The Veteran's contention about having experienced loud noise in service is competent evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses).
Moreover, the Board observes that the Veteran's DD Form 214 shows that he served as a jet aircraft mechanic in service, and so his statements regarding noise exposure in service are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). Thus, the Board finds the Veteran's own statements about noise exposure in service to be credible evidence. Moreover, the February 2010 VA audiologist rendered an opinion that tinnitus was as likely as not the result of noise exposure in service, and the RO has granted service connection for tinnitus based on noise exposure. In light of this evidence, the Board finds that the Veteran did sustain an injury to the ears in service from noise exposure. The remaining question, therefore, is whether there is a link or nexus between that injury and the current hearing loss disability.
The two VA audiologists rendered opinions that it was less likely as not that current hearing loss was the result of noise exposure in service because the audiometric findings at separation were within normal limits. The February 2010 examiner considered the threshold shifts between entrance and separation but still reached the same conclusion because, in her opinion, hearing was within normal limits from 500 to 4000 Hz.
In support of his claim are statements from his private medical provider which indicate noise-induced hearing loss related to service. The private provider did not have the service treatment records for review but considered the Veteran's lay statements with regard to the noise to which he was exposed during service as a jet aircraft mechanic.
The Board notes that neither the VA opinions nor the private opinion provide full and complete reasons for the conclusions reached. However, the Board finds that the private medical opinion is more credible and persuasive in this case because it appears to be more consistent with other evidence of record. Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) ("Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). Concerning this, the Board notes that despite the VA audiologists statements that hearing was within normal limits on separation, the separation examination establishes that a mild high frequency hearing loss consistent with the medical treatise cited in Hensley defining when hearing loss begins was first shown on active duty. Moreover, the April 2009 VA audiologist conceded the existence of a mild hearing loss at 6000 Hz. bilaterally at separation.
Accordingly, given this evidence of high frequency hearing loss at separation and the opinion of the private doctor, the Board concludes that it is at least as likely that the current bilateral sensorineural hearing loss disability in this case is the result of noise exposure in service as it the result of other factors or possible causes of hearing loss. Therefore, the benefit of the doubt must be resolved in favor of the Veteran's claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Having decided that service connection may be granted based on there being a current disability that has been shown to be the result of an injury in service, the requirements for service connection under section 3.303(a), (d) have been met. 38 C.F.R. § 3.303(a), (d). Therefore, the Board will not discuss whether service connection may also be warranted based on continuity of symptomatology under section 3.303(b). 38 C.F.R. § 3.303(b).
In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
ORDER
Service connection for bilateral sensorineural hearing loss is granted.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs